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An "Occurrence" Must Always be an Accident and Fortuitous for Coverage to Apply

https://zalma.com/blog

An \\u201coccurrence\\u201d is usually defined as accidental loss or damage which results, during the policy period, in bodily injury or property damage.

It should be axiomatic in all third party liability cases that before there can be a duty to defend there must be an occurrence or accident so that the events sued upon are fortuitous. In some states, the pleading controls the decision on coverage, as in Utah, while in others, like California, the insurer is obligated to look beyond the complaint to extrinsic facts.

The Eleventh Circuit has applied the injury-in-fact trigger three times in the context of similar, occurrence-based CGL policies and latent damages for purposes of determining whether the damage occurred during the policy period or during ongoing operations. The Court recognized that the Eleventh Circuit explicitly limited its holdings to the specific terms of the policies and facts before it. [Auto-Owners Ins. Co. v. Envtl. House Wrap, Inc. (M.D. Fla., 2019)]

In 1978, the California Supreme Court in Clemmer v. Hartford Insurance Co. dealt with a shooting that resulted in the death of the victim. Regardless, it still led to a finding by the Supreme Court of California of a need for defense and indemnity. The court concluded that Hartford had no duties with regard to Dr. Lovelace\\u2019s intentional acts in the killing of Dr. Clemmer but was obligated to defend him. If there was a finding of nonintentional conduct in the shooting, however, it would be obligated to defend and its refusal to do so was wrongful.